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Ballotpedia Courts: Determiners and Dissenters

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Determiners and Dissenters

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Ballotpedia Courts: State Partisanship
Analysis by state

May 2021

This is the second phase of a study to discern the partisan balance on each of the 52 courts of last resort in the United States. Below, you'll find the introduction to the study, including methodology, analysis, and highlights.

To read our analysis of the courts of last resort in each state, select a state below:


Read the full report as a PDF document here.

Introduction

In the first phase of the Ballotpedia Courts project, we studied the partisan political activity of state supreme court justices. Our research resulted in the development of a partisan Confidence Score for all 341 state supreme court justices seated as of June 15, 2020.

In this second phase of our project, Ballotpedia Courts: Determiners and Dissenters, we examine how these justices decided the cases that came before them in 2020. Which justices ruled together most often? Which frequently dissented? Which courts featured the most unanimous vs. contentious decisions?

To do this, we tracked the position taken by each state supreme court justice in every case they decided in 2020, then tallied the number of times the justices on the court ruled together. We identified the following types of justices:

  • We considered two justices opinion partners if they frequently concurred or dissented together throughout the year.
  • We considered justices a dissenting minority if they frequently opposed decisions together as a -1 minority.
  • We considered a group of justices a determining majority if they frequently determined cases by a +1 majority throughout the year.
  • We considered a justice a lone dissenter if he or she frequently dissented alone in cases throughout the year.

Below are some notable highlights from our research:

  • Which state supreme court had the lowest rate of unanimity?
    • The least unanimous court in the country was the Pennsylvania Supreme Court. The Pennsylvania Supreme Court had a unanimity rate of 43.1 percent. The court heard 116 cases in 2020 and at least one justice dissented or concurred in part and dissented in part in 66 cases.
  • Which state supreme court had the highest rate of unanimity?
    • Two states had a 98.5 percent rate of unanimity in 2020: Massachusetts and Nebraska.
      • The Massachusetts Supreme Judicial Court heard 194 cases. In those 194 cases the court logged one dissent and 16 concurring opinions.

The Nebraska Supreme Court heard 198 cases. In those 198 cases the court logged three dissents and ten concurring opinions.

  • Which determining majority ruled together most frequently in split cases?
    • The group of four justices most frequently deciding split decisions across any state supreme court in the country were Justices Breckenridge, Draper, Stith, and Russell from Missouri. They allied in the majority in six of the nine split decisions. In our Ballotpedia Courts: State Partisanship study, Breckenridge recorded a Mild Republican Confidence Score, Draper recorded an Indeterminate Confidence Score, Stith recorded a Mild Democratic Confidence Score, and Russell recorded a Mild Democratic Confidence Score.
  • Which pair of opinion partners dissented together most frequently?
    • Justices King and Kitchens from Mississippi dissented together more frequently than any other pair of opinion partners in 2020, allying together 34 times in dissent. The Mississippi Supreme Court heard 164 cases in 2020, which means that they allied in dissent 20.7 percent of the times the court heard a case. There were two or more dissents in 46 cases before the supreme court in 2020, which means that King and Kitchens were opinion partners in 73.9 percent of all cases with at least two dissents. Including majority rulings, in 157 cases before the court, King and Kitchens ruled the same way, which was 96.0 percent of the time. Justices King and Kitchens both received Mild Democratic Confidence Scores in our Ballotpedia Courts: State Partisanship study.
  • Which state supreme court justice dissented most frequently?
    • Justice Josephine Hart from Arkansas dissented more frequently than any justice in the country, with 76 dissents. The Arkansas Supreme Court heard 257 cases in 2020, which means that she dissented in 29.6 percent of the cases heard by the court.
  • Which state supreme court heard the greatest number of cases?
    • The West Virginia Supreme Court heard 899 cases in 2020. Some of the cases heard by the West Virginia Supreme Court were memorandum decisions. The office of the West Virginia Judiciary defines these cases as “An abbreviated decision on the merits of a case. Memorandum decisions do not contain a syllabus and are not published in the West Virginia Reports.”[1] Because the court hears these abbreviated decisions, they are able to maintain a higher caseload than other courts.
  • Which state supreme court heard the fewest cases?
    • The New Mexico Supreme Court heard 23 cases in 2020.[2] In 2019 they heard 25 cases, in 2018 they heard 50 cases, and in 2017 they heard 37 cases, according to Justia.

The country’s most contentious courts

Our research revealed the frequency with which each court issued unanimous rulings. We defined a contentious court as one containing justices who frequently disagreed in the outcome of cases in 2020.

We identified 11 contentious courts.

The country's most contentious courts
State Total cases Percentage of unanimity Number of split cases Number of dissenting opinions Most common case type
Indiana 59 66.10% 7 11 Criminal
Louisiana 47 68.10% 3 30 Criminal
Michigan 25 64.00% 3 9 Criminal
Mississippi 164 65.20% 4 32 Criminal
Missouri 58 62.10% 9 20 Criminal
New York 82 51.20% 13 40 Criminal
North Carolina 179 66.50% 9 51 Civil
Ohio 436 67.20% 24 83 Criminal
Pennsylvania 116 43.10% 5 46 Criminal
Washington 66 59.10% 6 24 Civil
Wisconsin 89 59.60% 12 49 Nonjudicial activity

Methodology, terms, and definitions

Defining opinion partners, determiners, and dissenters

We identified eight positions that each justice could take when ruling in a case. They are:

  • Writing for the majority refers to when a justice writes the opinion joined by a majority of justices on the court. In some split cases the chief justice may write a majority and also issue a separate opinion. This is because in some states the chief justice is responsible for writing the opinion of the court on split decisions but might disagree with the majority to a certain extent.
  • Majority refers to the group of justices who decided the outcome of the case in question, and whose reasoning is explained in the court’s opinion. Some state supreme court opinions refer to the majority as concurring with the majority opinion. We have decided to refer to this as joining the majority opinion to distinguish the activity of concurring with part of the majority opinion and agreeing with the majority opinion in judgment and result.
  • Not participating refers to a justice not participating in the court’s decision either due to a conflict of interest (sometimes referred to as recusal) or for personal (sometimes health-related) reasons.
  • Concurring refers to when a justice agrees with the judgment of the majority opinion but disagrees with part of the written opinion.
  • Concurring opinion refers to the opinion written by a justice who agrees with the majority’s judgment but disagrees with part of the opinion. In the concurring opinion, the justice explains the part of the majority opinion with which he or she disagrees.
  • Dissenting refers to when a justice disagrees with the majority’s opinion.
  • Dissenting opinion refers to the opinion written by a justice who disagrees with the majority. In the dissenting opinion, the justice explains why he or she disagrees with the majority’s judgment.
  • Concurring in part and dissenting in part refers to when a justice agrees with a part of the majority’s opinion but rejects another part of the majority's argument.

Defining courts of contention

We used several criteria to define a courts of contention. Primarily, we considered a court a court of contention if it did not reach unanimous decisions more than 70 percent of the time. Additionally, we considered the frequency of dissents over the course of the year. We also considered the frequency of cases decided by split decision and the tendency of the court to divide into a determining majority and a dissenting minority.

The ten courts we identified as courts of contention decided cases unanimously at a lower rate than 70 percent. Additionally, we chose courts which decided cases by split decision frequently enough that we could roughly determine a pattern between opinion partners, determining majorities, and dissenting minorities.

There are other ways that one could categorize courts as contentious or non-contentious. We welcome other methods of determining contentious courts. We consider our study a first endeavor to determine the courts which most frequently debated the outcomes of important cases.

Case categorization

We tracked the types of cases that each court heard by placing them in the following categories:

  • Criminal case: A criminal case involves a final criminal appeal before the court of last resort.
  • Civil case: A civil case is one that involves a dispute between two parties, one of whom seeks reparations or damages.
  • Constitutional case: A constitutional case is one that involves the violation of a right expressly protected by the Constitution of the United States.
  • Admin/agency law case: An admin/agency law case first proceeds from an administrative law court or involves the enforcement of an administrative regulation.
  • State statutory case: A state statutory case involves the violation or enforcement of a state statute.
  • Nonjudicial activity: A case is considered nonjudicial activity if it does not involve a formal hearing and discussion before the court.

There are many ways to categorize cases, and we welcome alternatives to our classifications. For example, some state court web pages classify all cases into two categories: criminal and civil. We sought to distinguish the cases in order to make the cases more readily navigable for our readers.

Additional terms

  • Per curiam is Latin for “by the court.” Per curiam refers to an opinion issued by the court that does not specify the justice who wrote the opinion.
  • Jurisdiction refers to the power of a court to adjudicate cases and issue orders. Jurisdiction can also be referred to as the territory within which a court or government agency may properly exercise its power.
  • Confidence Score refers to the scores recorded by justices in our Ballotpedia Courts: State Partisanship study.

Ballotpedia Courts: Final analysis

In our Ballotpedia Courts studies, we’ve looked at how partisanship affects state supreme court rulings. We approached this issue in two ways: one looking at the justices’ partisan activity before they are elected or selected to the court, and how they interact with justices who have similar partisan leanings. To understand how partisanship affects court decisions, we compared the findings from our two reports.

Throughout our study, we have found that in some cases, justices ally with those who share similar partisan history. But justices frequently ally with those who have a seemingly conflicting partisan history. In short, justices of the same party disagree with one another just like justices of different parties disagree with one another.

Split courts and the effects of partisanship on majority and minority groups

In some cases, there's an obvious correlation between partisanship and court behavior. On the split courts, or the courts composed of a +1 majority and a -1 minority of justices with contradictory Confidence Scores, the correlation is easier to see. Illinois, Michigan, and Tennessee were the only courts determined to be split courts in our Ballotpedia Courts: State Partisanship study.

In 2020, the Michigan Supreme Court was one of the nation’s most contentious courts and recorded a unanimity rate of 64 percent, the seventh lowest in the country. Michigan justices fell into predictable majority, minority, and opinion partner patterns. The three justices with Democratic Confidence Scores allied together in all three of the split cases. The four justices with Republican Confidence Scores allied in each split case. Justice Clement was absent in one case, leading to a 3-3 split on the court.

There were three split cases before the Illinois Supreme Court. In one split case before the justices fell into a Democratic majority and Republican Minority. In one of the split cases, Justice Theis (Strong Democrat) allied with the Republican minority and Justice Karmeier (mild Republican) allied with the Democratic majority. In another of the split cases, Justices M. Burke (Strong Democrat) and Neville (Strong Democrat) were joined with Justice Garman (mild Republican) in the dissent.

In the one split decision decided by the Tennessee Supreme Court in 2020, the justices fell into a predictable majority and minority. The three justices with Republican Confidence Scores allied in the majority and the two justices with Democratic Confidence Scores allied in the minority. Tennessee recorded an 85.3% rate of unanimity which was the highest of all the split courts.

Outliers on the courts and their effects on majority groups

Partisanship seems correlated with interesting behaviors in at least two other situations. When a justice records a Confidence Score which is an outlier on the court one of two things can happen: the justice sometimes acts a frequent lone dissenter (like Justice Appel in Iowa), or the justice may pull a justice from the majority to form an opinion partnership (as seen in Hawaii and Colorado).

Outlying justices often act as a lone dissenter

In our Ballotpedia Courts: State Partisanship study, we found that Justice Appel was the only justice of the Iowa Supreme Court who recorded a Democratic Confidence Score. Justice Appel was a lone dissenter eight times in 2020, which was more than any other justice on the court.

Outlying justices often form opinion partnership with justices with Indeterminate Confidence Scores

According to our Ballotpedia Courts: State Partisanship study, in 2020 the Colorado Supreme Court was composed of four justices with Democratic Confidence Scores, two justices with Indeterminate Confidence Scores, and one justice with a Republican Confidence Score. Justice Coats (Mild Republican) was in the dissenting minority with both justices who recorded indeterminate Confidence Scores, and was opinion partners with Justice Boatright who recorded an Indeterminate Confidence Score.

III: Partisan alignment of justices does not always lead to unanimity on the state courts

By comparing four courts, each of which is composed of justices who all recorded Confidence Scores of one party, it becomes clear that partisan alignment does not always lead to unanimity on the courts. In short, justices of the same party disagree with one another just like justices of different parties disagree with one another.

Alabama and Florida

According to our Ballotpedia Courts: State Partisanship study, Alabama and Florida have two of the most uniformly Republican supreme courts in the country. Every justice from Alabama recorded a Republican Confidence Score. Seven justices recorded a Strong Republican Confidence Score. Two justices recorded a Mild Republican Confidence Score. Every justice from Florida recorded a Republican Confidence Score. Two justices recorded a Strong Republican Confidence Score. Four justices recorded a Mild Republican Confidence Score. Our hypothesis was that if the partisan indicators were stronger, the more agreement we would see in court decisions. However, that was often not the case in 2020. Alabama recorded a unanimity rate of 83.4 percent and Florida recorded a unanimity rate of 86.4 percent. In Alabama, despite every justice on the court recording a Republican Confidence Score, the court disagreed quite often. Our Ballotpedia Courts: Determiners and Dissenters study determined that a pair of opinion partners dissented together 13 times, and two different justices were notable lone dissenters. In Florida, despite shades of difference with regards to the justices’ recorded Confidence Scores, there were no opinion partners, no split cases, and one lone dissenter.

Oregon and Washington

According to our Ballotpedia Courts: State Partisanship study, Oregon and Washington were two of the most uniformly Democratic state supreme courts in the country. All seven justices of the Oregon Supreme Court recorded Democratic Confidence Scores. Three justices recorded Strong Democratic Confidence Scores and four recorded Mild Democratic Confidence Scores. As for Washington, every justice recorded a Mild Democratic Confidence Score, except for Susan Owens who recorded an Indeterminate Confidence Score. In 2020, the Oregon Supreme Court recorded an 88.7 percent rate of unanimity, and Washington recorded a 59.1 percent rate of unanimity. In Oregon, zero cases were decided by split decision, three cases were decided 5-2, and three cases were decided 6-1. In 2020, the Washington Supreme Court decided 12 cases by split decision. There were two or more dissents in 35 cases.

Highlights

Below is a table displaying each court of last resort listed from lowest to highest rate of unanimity:

Courts of last resort: lowest to highest rate of unanimity
Court of last resort Total number of cases Rate of unanimity Number of cases decided unanimously
Pennsylvania Supreme Court 116 43.10% 50
New York State Court of Appeals 82 51.20% 42
Arkansas Supreme Court 257 55.60% 143
Washington Supreme Court 66 59.10% 39
Wisconsin Supreme Court 89 59.60% 53
Missouri Supreme Court 58 62.10% 36
Michigan Supreme Court 25 64.00% 16
Mississippi Supreme Court 164 65.20% 107
Oklahoma Supreme Court 112 65.20% 73
Indiana Supreme Court 59 66.10% 39
Supreme Court of North Carolina 179 66.50% 119
Ohio Supreme Court 436 67.20% 293
Iowa Supreme Court 103 68.00% 70
Louisiana Supreme Court 47 68.10% 32
Colorado Supreme Court 91 68.10% 62
Illinois Supreme Court 63 69.80% 44
New Jersey Supreme Court 43 74.40% 32
Minnesota Supreme Court 106 74.50% 79
Oklahoma Court of Criminal Appeals 22 77.30% 17
Texas Court of Criminal Appeals 159 81.10% 129
Texas Supreme Court 90 82.20% 74
Alabama Supreme Court 692 83.40% 577
South Carolina Supreme Court 87 85.10% 74
Tennessee Supreme Court 34 85.30% 29
Florida Supreme Court 110 86.40% 95
Maryland Court of Appeals 149 86.60% 129
New Mexico Supreme Court 23 87.00% 20
Utah Supreme Court 70 87.10% 61
Nevada Supreme Court 91 87.90% 80
Oregon Supreme Court 53 88.70% 47
California Supreme Court 76 89.50% 68
Montana Supreme Court 323 89.50% 289
Hawaii Supreme Court 411 89.50% 368
Idaho Supreme Court 140 90.00% 126
Kansas Supreme Court 120 90.00% 108
Connecticut Supreme Court 43 90.70% 39
South Dakota Supreme Court 73 91.80% 67
Rhode Island Supreme Court 62 91.90% 57
Alaska Supreme Court 138 92.00% 127
Arizona Supreme Court 52 92.30% 48
Maine Supreme Judicial Court 143 92.30% 132
Supreme Court of Appeals of West Virginia 899 91.50% 823
Kentucky Supreme Court 200 92.50% 185
New Hampshire Supreme Court 73 93.20% 68
North Dakota Supreme Court 269 94.40% 254
Vermont Supreme Court 218 95.90% 209
Wyoming Supreme Court 158 96.20% 152
Georgia Supreme Court 347 96.30% 334
Supreme Court of Virginia 55 96.40% 53
Delaware Supreme Court 435 97.90% 426
Massachusetts Supreme Judicial Court 194 98.50% 191
Nebraska Supreme Court 198 98.50% 195

See also

Footnotes

  1. ↑ Justia, "New Mexico Supreme Court Decisions," accessed May 11, 2021
  2. ↑ In 2020, the Oklahoma Court of Criminal Appeals heard only 22 cases. For our highlights section we wanted to include a supreme court which heard the fewest cases.
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Ballotpedia Courts: State Partisanship
Overview
The Most and Least Divided State Supreme Courts
Judicial Selection Methods and Partisanship
Elections and Appointments
Confidence Scores
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